How to Utilize Motions to Improve Your Practice
| Citation | Vol. 20 No. 3 |
| Publication year | 2014 |
| Author | By Sarah Avary |
By Sarah Avary
Sarah Avary is seeking a position in which she can use her legal research, writing, and advocacy skills. She graduated from Santa Clara University School of Law, where she was a Comments Editor for the Santa Clara Law Review. She is on the Board of the Women Lawyers of Santa Cruz County and a member of the Santa Clara and Santa Cruz County Bar Associations. She can be reached at sarahavary@gmail.com.
Writing, researching, and arguing motions successfully in your cases can be one of the best ways to benefit your clients and improve your reputation among the judiciary and other attorneys. Some attorneys struggle to develop as strong motion writers because they do not know what motions are available, they do not recognize potential motions because they do not know or understand the law, or they simply do not have the time to write them. However, in doing so, attorneys miss one of the most valuable opportunities to strengthen their practices.
I have had a very high success rate with motions in criminal defense practice. I have utilized motions to benefit my clients, gain a reputation as a strong advocate among judges, receive better plea offers from Deputy District Attorneys, and, most importantly, get numerous cases dismissed. In my opinion, criminal defense attorneys tend to underutilize motions due to time constraints. This mistake can result in unfavorable results for clients along with increased costs and stress. Motions can often be the easiest and best way to get clients' cases dismissed or get their charges significantly reduced.
Attorneys, clients, and law practices often put too much emphasis on trial experience and trial wins. The number of trials that attorneys have taken to verdict is often considered a measure of their success. However, an attorney's goal should always be to obtain the best results for clients, and winning motions is often a better way to resolve cases than by going to trial. Criminal defense attorneys have a much greater chance of getting a case dismissed through a motion than by winning a trial. There is little to be lost by filing a motion, and there is obviously no such thing as a guaranteed win at trial.
When I was a new Deputy Public Defender, I developed a reputation for winning numerous motions. For example, during my first year in practice, I received an award for winning the second highest number of motions to suppress in my office. Later, when I worked as a Research Attorney, I wrote several motions in felony cases. I attribute my success to my enjoyment of legal research and writing, as well as my extensive experience writing motions for two District Attorneys' Offices as a Law Clerk. I was already very familiar with the statutes and case law for various motions, had an insider's view of how opposing counsel would reply to motions, and had learned to recognize issues for potential motions while reading police reports.
When I was a Deputy Public Defender, one of the most important things I did was using good judgment when I filed motions. I argued most of my motions in front of the same judge. Before filing a motion, I thoroughly researched the law to make sure that the law was on my side and that my motion was meritorious. This is not to say that I filed motions conservatively; because I knew the law well, I found many motions I could file. But, I did not file motions for the purpose offishing for information, and I wrote detailed motions that presented all facts and law, favorable or otherwise. After I began winning motions, I like to think that the judge recognized that when I filed a motion, it was for a good reason.
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The goal of this article is to help you become successful in utilizing motions to improve your practice. I will give an overview of a few common pretrial motions with which I've had success to help you understand when these motions are appropriate. When you have a case, one of your first instincts should be to look for possible motions.
Motions to Suppress under Penal Code section 1538.51 are used when a defendant's Fourth Amendment (or related) rights are violated. "Section 1538.5 authorizes a defendant to move for suppression of any evidence, tangible or intangible, that is the product of an illegal search and seizure, or for the return of property that has been illegally seized. The grounds supporting the motion must be that the search, whether conducted with or without the benefit of a warrant, was unreasonable."2
One of the best tools to become familiar with search and seizure law is the California Judges Benchbook: Search and Seizure.3 A solid understanding of search and seizure law will help you recognize possible Motions to Suppress while reading police reports. California Judges Benchbook: Search and Seizure suggests going through the following questions when analyzing search and seizure issues: Was there a search or seizure within the meaning of the Fourth Amendment? If so, was the search or seizure unlawful? If so, does the exclusionary rule apply?4
A search is a governmental intrusion upon, or invasion of, a citizen's personal security in an area in which he has "a reasonable expectation of privacy."5 A seizure of a person occurs when a reasonable person would believe that he is not free to leave;6 a seizure of property is a "meaningful interference with an individual's possessory interest in that property."7
In writing Motions to Suppress, it is useful to go through each stage of the government authority's conduct in relation to your client step by step to determine if your client's rights were violated. Often, this takes of the form of stop, detention, and arrest. Common scenarios ripe for search and seizure issues include detentions, frisks, vehicle stops and searches, searches of personal belongings, and entries into suspects' homes.
Some attorneys routinely file what is called a "Wilder Motion,"8 which alleges that a particular search or seizure was made without a warrant, but does not address any justifications for the search or seizure.9 The advantage of filing vague Wilder suppression motions rather than alleging what evidence should be suppressed is that the prosecution may not be able to anticipate defense arguments and may not elicit sufficient testimony from officers. However, I found the most success in detailing the specific evidence I wanted suppressed and the case law supporting my arguments. The judge before whom I argued motions spent considerable time researching the law before hearing motions, and I wanted the opportunity to address why the law favored my position before he heard testimony at the hearing.
In a misdemeanor case, a Motion to Suppress under Penal Code section 1538.5 must be made and heard at a hearing before trial.10 The motion may be made during trial only if the opportunity to make the motion did not exist earlier or if the defendant was not aware of the grounds to make the motion before trial.11 In a felony case, a defendant is entitled to either: "A fully litigated search and seizure hearing at the preliminary examination, followed by a limited special hearing after the defendant is held to answer"12 or "A single fully litigated search and seizure hearing, held in felony court."13
Motions to Set Aside the Information under Penal Code section 99514 challenge the sufficiency of the evidence...
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